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SOCIETY FOR PROMOTING SCIENTIFIC INQUIRIES INTO 
1 SOCIAL QUESTIONS. 



REPORT 



THE PATENT LAWS 



JAMES A.' LAWSON, ESQ., LL. D. 

BARRISTER-AT-LAW, 

FOBMERLT ARCHBISHOP WHA.TELT'8 PKOFESSOE OF POLITICAL ECONOMV IN THE UNIVERSITY 

OF DUBLIJf. 



DUBLIN: • 
HODGES AND SMITH, 104, GKAFTON STREET 

LONDON : RIDGEWAY, PICCADILLY. 



185L 



/7-9ifO 



SOCIETY FOE PROMOTING SCIENTIFIC INQUIEIES INTO 
SOCIAL QUESTIONS. 



PRESIDENT: 

HIS GARAGE THE ARCHBISHOP OF DUBLIN. 

COUNCIL: 






MOUNTIFORD LONGFIELD, Esq. 

Edward Barrington, Esq. 
James Perry, Esq. 
James Wm. Murland, Esq. 
John Cameron, Esq. 
Richard Allen, Esq. 



Richard Atkinson, Esq. 
James Haughton, Esq. 
Richard D. Webb, Esq. 
John Hancock, Esq. 
Alexander Thom, Esq. 
Richard F. Mulvany, Esq. 



TREASURER: 

JONATHAN PIM, Esq. WilUam-street, Dublin. 

SECRETARY: 
PROFESSOR HANCOCK, 40, Trinity College. 
JOHN K. INGRAM, Esq. F.T.C.D., 40, Trinity College. 



This society was established in November, 1850, for the purpose of pro- 
moting the Scientific Investigation of Social Questions of general interest, 
and the publication of reports or essays on such questions. The Council 
select the subjects for investigation, and either employ competent persons to 
inquire and report on the questions selected, or offer prizes for the best 
essays on such subjects. 

Subjects for investigation are not selected, nor are reports or essays re- 
ceived, which involve the discussion of rehgious differences or party politics. 

The reports or essays, when approved of by the Council, will be brought 
under public notice, either by separate publication, or by being read at the 
meetings of the Dublin Statistical Society, or at those of the Statistical 
Section of the British Association, or of similar scientific bodies. 

The Council propose to make public every report of suflScient importance, 
which is prepared in a truthful and careful manner. But the publication of 
a report or essay will not pledge the members of the society to the opinions 
contained in it, which must rest on the responsibility of the author, and 
will only express that, in the opinion of the Council, the report or essay is 
worthy of the attentive consideration of the public. 

The annual subscription to the society is one pound, but larger sums are 
contributed by some members, such as two, three, five, twenty, and twenty- 
five pounds. Subscriptions are received by the Treasurer, the Secretaries, 
Messrs. Hodges and Smith, 104, Grafton-street, Dublin ; and Messrs. 
Webb and Chapman, 177, Great Brunswick-street. 



i 



CONTENTS. 



Subject matter of the inquiry ........ 5 

CHAPTER I. 

ON THE COST AND DELAY OF OBT^VINING A PATENT. 



Section I. — Cost and delay of unopposed patents .... 6 

Section II. — The expense and delay are occasioned by the course of pro- 
ceeding which must be adopted in order to obtain a patent . . 7 
Section III. — Detail of fees payable on patents .... 9 

Section rv. — Cost and delay of opposed patents . . . .11 

Section V. — The expense and delay are not caused by any search for 

previous inventions 12 

Section YI. — Em-olment of specifications . . » . .13 



CHAPTER II. 

Rights of a patentee under British law 13 — 16 



CHAPTER III. 

defects in the patent laws. 
Section I. — ^Frauds arising fi-om caveats and the delay in em-olling speci- 
fications 16 

Section H. — Strictness required in specifications . . . .18 

Section III. — Tribunals and modes of procedm-e for trying patent questions 18 
Section TV. — Want of a simple mode of repealing a patent . .19 

Section V. — Law as to infringement of patents . . . .19 



IV 



CONTENTS. 



CHAPTER IV. 

CHANGES SUGGESTED m THE PATENT LAWS. 



1. One Patent OflSce for the United Kingdom . 

2. Appointment of a Commissioner of Patents 

3. Form of application for a patent 

4. Fee payable on the application for a patent 

5. Mode of deciding upon the application 

6. Inquiry to be made by the Commissioner 

7. Grant of patent 

8. Refusal of application .... 

9. Defective applications, how to be dealt with 

10. Notice of grant of patent 

11. AppUcation to repeal patent 

12. Power of Commissioner to repeal patent 

13. Apphcation to repeal patent after three months 

14. Effect of patent in evidence to be conclusive 

15. Power to sue m inferior com-ts . 

16. Errors in specification 

17. Term of patent and periodical payments 

18. Publication of specifications 

19. Registry of existing patents 

20. Apphcation of funds of Patent Office 

21. Patents to be deemed personal property 



Page. 
21 
21 
22 
23 
24 
24 
24 
24 
25 
26 
26 
26 
26 
26 
27 
27 
27 

, 28 
29 
29 
29 



REPORT. 



Dublin, Ath February, 1851. 
Gentlemen, 

I have, at your request, inquired into the state of the Law of 
Patents in this country, and I now beg to lay before you the result 
of that inquiry. My attention was particularly directed by you, 
" to the expense and delay of obtaining a patent ; and to the legis- 
lative measures which would be necessary to lessen that expense 
and delay, and at the same time to afford greater security to in- 
ventors." 

I have examined into the British law upon the subject, as com- 
pared with the law of other countries ; aijd the suggestions which 
I have ventured to make, are the result of a comparison of the 
relative merit of those systems, guided by the opinions pronounced 
upon them by those who have had practical experience of their 
working. 

I propose to consider then, 

1 St. What is the expense and what is the delay of obtaining a 
patent, and what occasions such expense and delay ? 

2nd. What are the rights conferred upon a patentee by the 
grant of a patent under British law ? 

3rd. What are the defects in the present system of patent laws? 

4th. What are the best changes in the law which can be suggested? 

Before entering upon these inquiries, I shall make a few pre- 
liminary observations on the nature of patents, and the principles 
on which they are based ; as these principles ought to guide us in 
legislating on the subject. 

A patent is a species of monopoly, sanctioned by the law for 
vv'ise purposes and within certain limits ; and is, with respect to 
inventions, what copyright is to books. When any man has made 
a useful invention in the arts, or has put his thoughts into writing, 
it is perfectly at his option whether he will ever disclose the in - 
vention, or publish the book ; there is no law to compel him so to 
do ; he may die without imparting the discovery, or he may put 
his manuscript into the fire. Now, if there were no law of patent 



and no law of copyright, the effect of his publication would be, 
that what had been his own exclusive property before, would 
become public property ; and any man could use it as he pleased. 
We know that men, even when they stumble upon a discovery by 
accident, are not very fond of presenting it to the public, if they 
can make any profit by concealing it ; and still more certain is it, 
that in most cases a man will not devote himself to making discover- 
ies, for the mere sake of giving them to the public, without any per- 
sonal advantage to himself. The principle, then, on which the law 
of patents ought to rest, is two-fold. 

First. To encourage men to make useful discoveries and inven- 
tions, by insuring to their authors the right of property for such a 
period, as will enable them to derive that profit from their ingenuity 
which they are justly entitled to. 

Secondly, to secure the communication of the knowledge of in- 
ventions to the public ; so that there may be no obstacle to their use 
in suggesting further discoveries, or to their exercise as soon as 
they become public property, when the period of monopoly is over. 

If the law does not confer these rights, with cheapness, certainty, 
and expedition, in the case of inventions as in the case of books, 
it fails to carry out the principles on which its existence is based. 
Bearing these principles in mind, let us see how the law actually 
stands. 



CHAPTER I. 

ON THE COST AND DELAY OF OBTAINING A PATENT. 

Section 1. — Cost and delay of unopposed patents. 

The cost of obtaining letters patent for England, Ireland, and 
Scotland, may be stated to be nearly as follows : — 

For England and Wales . . £1 10. 

Scotland 82. 

Ireland 134. 



£326. 



This estimate is taken from the printed instructions published by 
various patent agents, for the information of those wishing to 
apply for patents; and I shall afterwards give a detail of the items 
of which these sums are made up. In this estimate the expense 
of preparing specifications is not included ; these must be prepa- 
red by skilful persons, with great technical accuracy, and the 
expense of preparing them is stated in those same instructions to 
vary from £15 upwards. The specification must be enrolled in 
the Court of Chancery, and there is a stamp duty of £5 ; and £ I for 
every 1080 words after the first 1080 words. Taking these speci- 
fications, of which three are required, at £25 each, it makes the 



total expense of an unopposed patent, £401 for the United King- 
dom ; and it has been stated to me by a patentee, that the expense, 
including all the incidental charges, may be generally estimated at 
£450. Such is the cost of a patent for the United Kingdom. 
The delay in obtaining a patent is 

In England from 6 weeks to 2 months. 
In Scotland 3 to 4 weeks. 

In Ireland 3 to 6 months. 

The result of the above statements, so far as Ireland is con- 
cerned, is, that the expense and delay of obtaining a patent in 
Ireland are greater than in any other country in the world, and 
the consequence which might be naturally anticipated ensues; 
there is no country, where patents are known, in which so few 
are taken out, in proportion to its population and general intelli- 
gence. Patents are granted with us for a period of fourteen 
years ; and in order to compare the scale of charges in the United 
Kingdom, I will mention the cost of obtaining patents in a few 
other countries. In the United States of America, the fee pay- 
able by an American citizen for a patent is 30 dollars, or £6 15s. 
In France, the duration of patents or brevets of invention, is five, 
ten, or fifteen years : the charge is £20 for five years, £40 for ten 
years, £60 for fifteen years. The tax is payable by annuities of £4 
each. In Austria the expense of a patent for fifteen years is about 
£75 ; and this is the nearest approach to the British scale of charge. 



Section 2. — The expense and delay are occasioned by the course of 
proceeding which must he adopted in order to obtain a patent. 

The expense and delay are caused by the number of the stages 
through which an application for a patent must pass, and the fees 
exacted at each step, as will be apparent when I describe the very 
complicated process which must now be gone through in order to 
obtain a patent. The cost and delay may be entirely removed by 
simplifying the course of proceeding. 

A petition to the Queen is first to be prepared, setting forth the 
title of the invention, stating that the petitioner is the inventor, and 
praying for a grant of letters patent. This is accompanied by a 
declaration made before a Master in Chancery, verifying the same 
matter. The petition and declaration are then left at the Home 
Office, and the Home Secretary refers the matter of the petition 
to the Attorney or Solicitor- general. The petition is then taken 
to the Attorney-general's chambers, and left there for a report. 
If no person has entered a caveat, a proceeding which I shall pre- 
sently notice, the Attorney -general reports that the letters patent 
ought to be granted to the petitioner at his own risk. This report 
of the Attorney-general is then taken to the Home Office, where 
a warrant is made, which is a copy of the petition, and sent to the 
Queen for signature. When signed" by her Majesty, and counter- 



8 

signed by the Home Secretary, it is taken to the Patent Bill Office. 
The grant of the patent may be opposed at tliis stage also ; but if 
not opposed, the draft of the Bill, and docquet of the Bill are 
made out at the Patent Bill Office, and two copies of the Bill are 
engrossed, one for the Signet Office and one for the Privy Seal 
Office. The Bill is then taken to the Attorney general, and signed 
by him. It is then taken to the Home Office again, and sent to 
the Queen for signature. It then is taken to the Signet Office, to 
prepare the Signet Bill ; then a Privy Seal Bill is prepared for 
the Lord Chancellor ; then the patent is engrossed, and taken to 
the Hanaper Office, and if no opposition is given at this stage, the 
patent is sealed, and the grant complete. 

In the case of a Scotch patent, the matter is referred to the 
Lord Advocate to report on ; but the Bill is passed by sign manual, 
a shorter and less expensive process, which accounts for the lesser 
cost and delay in these cases. 

In the case of an Irish patent, the petition is transmitted to the Lord 
Lieutenant, who refers it to the Attorney-general for Ireland. The 
Attorney-general reports upon it, and it is sent back to the Castle ; 
it is then sent to London, and the warrant is prepared and goes 
through the Signet Office in London, and it is again sent to Ire- 
land to have the Great Seal of Ireland affixed to it. This is a 
very tedious and expensive process, and all the witnesses, who 
were examined before the Committee of the House of Commons 
on Patents of invention, in 1829, and in 1848 on the Signet and 
Privy Seal Offices, complain much of the delay in getting Irish 
patents.* 

Thus it appears that more than twenty different stages or 
processes must be gone through ; the petitioner must incur the 
expense of employing an agent, and that agent must- call from 
day to day at the offices to inquire if his papers are ready, and 



* Mr. Abbott, in his evidence before the Committee on Patents of Inven- 
tion in 1829, states : — " How to account for it I do not know, but you can 
seldom get an Irish Patent in less than five or six months. I have often, 
and every body who has had anything to do with it, has felt the great incon- 
venience they are put to in getting a patent for Ireland. The patentee is in 
danger of having his rights destroyed, in as much as he must specify in 
England, and any one may see that specification here on paying the ofiice 
fees for search ; and by sending over to Ireland the whole subject matter of 
it, there is no patent right to prevent it being used there, and being used is 
completely destructive of the patent." 

A -witness examined before the Committee on the Signet and Privy Seal 
offices, says : — *' We transmit a petition to the Lord Lieutenant through an 
agent, and he sends it to the Attorney-General who reports upon it and then 
the agency ceases in Ireland ^ and we never again get hold of the documents, as 
they are transmitted through the offices, and the consequence is that we have 
far more enormous delays in Ireland than in England and Scotland." 

Again, Mr. Carpmael, ihid: — "What is the reason that you have ten 
times the number of patents in England that you have in Ireland ? — Because 
it is not worth peoj^le's while to go to the expense." 



take and transmit them to the next official, and so through all 
the tedious and unnecessary process. Great delays arise from va- 
rious occasional causes,* and expedition must sometimes be pro- 
cured by payment of further fees.f 

It is plain from this statement, that the cost and delay are 
caused by an adherence to obsolete and useless forms, which 
have been handed down from a very remote period, and are still 
preserved, though they are entirely unsuited to the exigencies of 
the case and the wants of society, and are felt to be a very op- 
pressive and unnecessary burthen. No good or plausible reason 
can be suggested for adhering any longer to these forms ; they are 
useless and vexatious ; they are not, like some legal forms, harm- 
less fictions, but substantial grievances. The delay is inevi- 
table where a matter must pass through so many stages, and 
where the petitioner is obliged to wait the leisure of officials, and 
to transmit the application from one office to another. Even if it 
were deemed expedient to continue the present cost of obtaining a 
patent, it would be right to abolish the present procedure, and 
permit a person at once to obtain his patent at one office upon 
payment of the tax imposed; for the delay, at least, cannot be 
said to be of any benefit. 

At present, the fees paid are applied to remunerate persons for 
doing what is useless, and whose services ought either to be discon- 
tinued, or, if required, rewarded by a fixed salary. All the benefits 
now conferred by the tedious process of obtaining letters patent would 
be as effectually secured by a simple certificate of registration, which 
could be obtained without any delay, and at a small expense, as it 
is obtained under the Designs Act. I do not say that the ma- 
chinery of the registration under the Designs Acts should be 
applied to inventions, but merely observe that the issue of such a 
certificate would be as efficacious and would confer the same bene- 
fits as the grant of letters patent now gives. 



* *' The completion of the warrant may be delayed by hohdays, the ab- 
sence of Her Majesty, and many other causes." — Hindmarch on Patents. 

t The Statute, 27 Henry VIII., c. 11, which requires that every patent 
should be brought to the clerks of the Signet and Privy Seal, was passed /or 
the purpose of creating fees. 

Mr. Spence, who was examined before the Committee of 1849, is asked, 
"Are the proceedings at the Signet oflBce and Privy Seal office any thing 
more than formal with regard to new inventions?" — " Nothing more than for- 
mal, but they are dilatory. Great complaint has been made, and with reason, 
at the confinement to one seal day in the week. The rule is to deposit the 
bill on Thursday, at one o'clock, in order to be in time for the seal on Friday. 
If it passes over one o'clock on Thursday, it is delayed for a week. The 
Privy Seal, however, may be obtained in a day, on payment of five guineas 
as an expedition fee." 



10 



Section 3 — Detail of Fees payable on Patents, 

The particulars of the fees and expenses, so far as I have been 
able to collect them, are the following : — 

ENGLAND. 

Preparing Title of Invention, Petition, and Declaration 
Secretary of State's Reference 

Warrant 

Bill 

Attorney or Solicitor-General's Report 

BiU 

Signet Office Fees . . 

Privy Seal Fees ' . . 

Great Seal Office Fees .. 

Stamps 

Boxes .. 

Gratuity 

Hanaper 

Deputy 

Recepi .. 

Sealers 

Office-keeper 

Passing Patent 
Letters, &c. 



SCOTLAND. 

Preparing Title of Invention, Petition, and Declaration 
Secretary of State's Reference 

Warrant 

Stamp 

Lord Advocate's Report 
Director 
Clerk 
Translator 
Servant 
Livery 
Extra 

Great Seal, Lord Keeper 
Deputy 
Usher 
Appendee 
Deputy 
Wax 
Extra 
Agency in Scotland 

Passing Patent 
Letters, &c. 



£ s. 


d. £ 


s. d. 




1 


5 6 


2 2 


6 




7 13 


6 




7 13 


6 






- 17 


9 6 


4 4 







15 16 









— 20 







4 


7 




4 


7 


5 17 


8 




30 2 







9 


6 




2 2 







7 13 


6 




10 


6 




1 11 


6 




10 


6 




5 









- 49 


2 2 




10 10 




1 


1 




£108 


2 2 




1 


5 6 


2 2 


6 




15 7 







1 10 









— 18 10 fi 




4 


4 


15 







7 10 







1 1 







3 


6 




3 


n 




2 


6 






— 25 


7i 


6 13 


4 




2 10 







2 4 


5^ 




2 2 







1 







7 


6 




2 


6 




4 4 









— 18 


4 9i 




10 10 




I 


11 6 




£79 15 11 







£ s. d. 






1 5 6 


2 2 


6 




7 13 


6 




1 10 





11 6 






31 10 






3 3 






2 14 6 






3 5 






11 3 






8 9 2 






30 






1 1 8 


_. 




21 2 6 






10 10 


-- 




1 11 6 



11 

IRELAND. 

Preparing Title of Invention, Declaration, and Petition 
Secretary of State's Reference 

Warrant 

Stamp 

Attorney or Solicitor-General's Report 

Signet Office .. 

Seal Office 

Lord Lieutenant's Fiat . . 

Attorney General's Clerk, for Fiat 

Clerk to Hanaper 

Stamp 

InroUing 

Further Fees 

Passing Patent 

Letters 

£138 19 1 
The above Table of Fees is taken from "Carpmael on Patent Laws." 
A table of Irish fees is also given in Thorn's Directory for 1848, 
which agrees with the statements already made as to the expense 
of Irish Patents. They are there stated to amount to £1 16 1 73. 7d., 
and to this must be added the fees payable in England for the part 
of the business transacted there in preparing the Warrant and 
Signet, as well as agency fees £10 10s. ; and it will make up about 
the sum of £134 already stated. 

Section 4. — Cost and delay of opposed patents. 

Such are the cost and delay of an unopposed patent — we shall 
now see what the cost and delay will be in case it is opposed. 
Any person who pleases may now enter a caveat in respect of 
the granting of a patent for any particular department, which en- 
titles him to notice of every application for a patent respecting 
that department. For instance if a person enters a caveat against 
patents for improvements in the steam engine, he gets notice 
through the office of every application for such a patent. On 
receiving notice of that application, he has seven days to enter 
opposition. The parties then have a hearing before the Attorney 
or Solicitor General ; each party is heard separately, and states 
his invention ; and if there be no similarity between them, he 
grants the patent of course. If he thinks there is any similarity 
between them, it is frequently suggested that the parties should 
join in the patent, or otherv/ise effect a compromise ; but to induce 
the Attorney or Solicitor-general absolutely to refuse the patent, a 
very strong case must be made out, that the invention is not 
original, or has been already the subject of a patent, or has been pub- 
lished, and is notoriously old. If he refuses, there is no appeal from 
that decision, and the applicant is remediless. The official fee for 
the meeting is £3 lOs.to which must be added the costs of the agent 
of the party, and counsel if employed j and of course some delay is 



12 

caused thereby, as the Attorney and Solicitor-general are much press- 
ed with business.* There is, as before mentioned, a second stage 
at which opposition may be made ; and if an opponent neglect 
opposing in the first instance, he is obliged to deposit £30 to meet 
the cost of the opposition, and the petitioner's expenses. This 
opposition is not of very frequent occurrence. Before the Lord 
Chancellor an opposition may also take place ; but this is also of 
rare occurrence. Thus the expense and delay are greatly in- 
creased by opposition, but this is of course under the present sys- 
tem unavoidable. 

Sec. 5 — The expense and delay are not caused hy any search for 

previous inventions. 

It might naturally be expected, that where a great number of in- 
ventions have been made and patented, a principal cause of delay 
would be the obvious necessity of inquiry whether the same in- 
vention had been previously published or patented. No such 
inquiry, however, is made on the part of the authorities from 
whom the patent is obtained ; and inventors themselves are unable 
effectually to make the inquiry, because there are no facilities given 
to assist them in such a search. 

It is scarcely possible for an inventor to know what inventions 
have been already patented. The specifications formerly were 
enrolled in three different places in London, which inconvenience 
has been remedied by a recent statute ; still they are, for all prac- 
tical purposes, very difficult of access. They are written in an 
engrossing hand, not classified or indexed, and the labour and 
expense of searching present an insurmountable obstacle to in- 
ventors making themselves acquainted with the recorded inven- 
tions of others. One witness examined before the committee 
stated that he paid £2 8s. fees, for searching for one day in the 
Enrolment Office. We all know by experience how frequently it 
occurs that different minds have arrived at the same results, 
without any communication with each other, or knowledge of 
what has been said, done, or thought by others ; and, therefore, 
a person arrives at an important mechanical result which he never 
heard of before, and which he arrived at by his own unaided 
ingenuity, and is therefore virtually or morally the inventor of it. 
Believing himself to be so, and believing that his invention will 
be profitable to himself, and useful to the community, he applies for 
and obtains a patent. He has no adequate means of ascertaining 
whether the invention has been ever made the subject of patent. 
He knows it is not in use, and is satisfied with this ; and after he 

* *' It frequently happens that the Attorney or Solicitor-General is pre- 
vented by his other engagements from attending at his chambers at the time 
appointed, and in such cases the hearing will be postponed from time to time 
by the clerk until the matters of the petition and opposition can be heard ; 
and an opposing party must attend the further appointment without any 
fresh summons." — Hindmarch, p. 5U. 



13 

has incurred the expense of taking out his patent, he finds when 
he seeks to enforce it, that the invention has been substantially 
patented before, and that he must therefore be defeated, and his 
patent held void ; for such is the law ; a thing once patented 
becomes, at the end of the fourteen years, public property, and 
cannot be made the subject of patent again. Thus persons every 
day pay their money for obtaining patents which are entirely 
worthless. In order to guard against these evils, several changes 
ought to be made, which we shall suggest when we come to 
discuss the reforms proposed. 

Sec. 6. — Enrolment of Specifications. 

After the patent is sealed, in order to complete the title of the 
patentee, the only thing remaining to be done is the enrolment of 
the specification, for which a period is allowed after the sealing of 
the patent. If the patent is applied for only for England, the usual 
period is two months ; but if for the United Kingdom, six months 
are allowed ; and in some cases, so long a period as fifteen months 
has been allowed. We shall see how this works when we come 
to consider the frauds arising out of the present system of 
patents. If, at the lapse of the appointed time, the specification 
is not enrolled, the patent becomes void. The specification is a 
document which must be prepared with great skill and care, as the 
whole title of the patentee is avoided by any defect in it, and the 
most subtle questions of law and fact arise upon the construction 
of the specification. It should consist of a minute and detailed 
description of the invention, illustrated with drawings if necessary, 
and so prepared that any competent workman would from it be 
enabled to carry out the invention. I have already stated the 
expense attendant upon the preparation of the specification, and I 
shall presently consider the policy of allowing any interval to 
elapse between the grant of the patent and the description of the 
thing patented. 



CHAPTER II. 
RIGHTS OF A PATENTEE UNDEB BRITISH LAW. 

We have next to inquire what are the rights conferred upon 
a patentee by the grant of a patent according to our law. 

The result of the expensive, complicated and tedious proceedings 
which we have detailed is this — The petitioner has made a claim, 
alleging himself to be the proprietor of a certain invention, and 
has obtained a grant at his own risk and peril.* There has been 

* " Although patents of invention are not demandable as of right, yet 
they are in practice rarely refused, the reason being, as stated in the Attor- 
ney-general's report, that the grant is entirely at the risk of the petitioner." 
Hindmarch on Patents, p. 377- 



14 

as yet no judicial or other determination, either that he is an 
inventor ; or if an inventor, that he has taken the proper means to 
secure to himself the exclusive use of that invention. The only 
effect of the patent is to give him a right to litigate those questions. 
Whether it is expedient that the claimant should be put in a better 
position is a question to be considered ; but as a matter of fact, the 
effect of all that has taken place is to establish that he has made a 
claim to property, which claim he may substantiate before the or- 
dinary tribunals of the country. If after a patent has been granted, 
the alleged right of the patentee is infringed, what remedy does 
the law provide him ? If he has sufficient evidence to prove the 
fact of the infringement, he may at once bring an action on the 
case against the party who has infringed his right. If, however, 
he has not sufficient evidence, he must resort to the costly process 
of filing a Bill in Chancery for discovery and an injunction, which 
will probably result in a trial at law. Now what defence may a 
party make who is sued by a patentee ? He can not only deny 
the infringement of that exclusive right which the patent pro- 
fessed to grant, but he can go behind the patent itself, and impeach 
its validity on technical grounds.* He may go into evidence to 
show that it is not a new invention, but has been used before, f or 
that an old patent was in existence. The patent may also be im- 
peached on various defects in the title and the specification ;t thus, 
if the title does not correspond with the specification ; or if there 
be any error in the specification, even of a trifling nature. § Again, 
if anything old be introduced, and claimed as original in the spe- 
cification, it will vitiate the whole, although all the rest be new, 

* Mr. Taj'^lor says : — '* The great evil is having to defend your patent in 
a Court of Law." 

Mr. Farey says: — " If patent rights 'vrere made more secure, at law, and 
by less expensive proceedings, it would not suit the interest of patentees to 
enter into combinations, but on the contrary to promote the most extensive 
and open use of their inventions by licenses at a moderate tax." 

t A case is mentioned in the Evidence before the Committee of 1829, of a 
patent obtained by Mr. Daniel, for a particular mode of giving a lustre to 
cloth. On the trial one witness was produced, who swore that he had done 
the same thing before. It was not pretended that the process was in use, or 
had been published ; yet on this evidence the patentee was defeated. In 
another case, Carpenter v. Smith, 9 Mee and Wei. 300, proof that an indi- 
vidual had used a lock, similar to that patented, on a gate near the road, 
avoided the patent. 

X A very intelligent and experienced witness, Mr. Farey, before the Com- 
mittee of 1829, states : — " It is one of the most metaphysical problems that I 
know, to prepare a title to a patent, not to be so clear as to call the attention 
of rivals, and not so obscure as to incur the danger that a Court of Justice 
may rule that it is an imperfect title." 

§ Thus, in one case the word ' pressing' was put in by mistake, instead of 
* dressing' and the expenses were obliged to be incurred over again. A 
witness who was himself a patentee, states: — "I have not practised the 
invention, because I cannot do it at a profit ; because if I were to begin 
working it, all my neighbours would do the same, in defiance of my patent. 
My specification is not Avorth a farthing, and I do not believe it is possible 
to make a specification upon this loom that will pass in a court of law." 



15 

so that a partial defect vitiates the whole.* Watts's patent for 
steam engines was upheld though in fact the specification was not 
such as would enable a person to construct a steam engine from it. 
A patentee, therefore, has now no security when he has obtained 
his patent, that he will be allowed to enjoy the property ; and not- 
withstanding the expense he has incurred, his rights may be en- 
tirely defeated. As a specimen of the many defences which can 
be set up against a patentee, and the litigation consequent thereon, 
I may mention a case which I have taken at random from the Law 
Reports of last year. The name of the case is Beard against 
Egerton.t The declaration, which is the complaint, is of great 
length, setting out the patent, the enrolment of the specification, 
and the various breaches complained of. The patent was obtained 
by a person named Berry, for the Daguerreotype, and by him 
assigned to Beard. The defendant pleaded fifteen pleas : — 

1. That he was not guilty of the infringement. 

2. That the Queen did not grant the patent. 

3. That the patent was obtained from the Queen by fraud. 

4. That Berry was not the inventor. 

5. That Daguerre was the inventor, and that Berry had only 
introduced it into this country, and that he held the patent in trust 
for Daguerre, who was an alien. 

6. That the invention had been published and used in France. 

7. Similar to the 6th plea. 

8. T^at it was not a new manufacture. 

9. That it was not a new invention as to the public use. 

10. That the title was bad. 

11. That the title was inconsistent and too large. 

12. That the invention was not duly specified. 

13. That Berry did not assign to the plaintiff. 

14. That the defendant used the invention by the leave and 
license of the plaintiff. 

15. That the invention was of no use. 

There were legal objections to some of these pleas, which were 
argued before the court. Then a trial took place, at which the 
infringement was admitted and these technical defences relied on, 
and then the case was argued before the court again. 

Now I think a more monstrous abuse could scarcely be con- 
ceived, than is evidenced in allowing a party to raise these unjust 
and inconsistent defences. This case appears to have been more 
than three years depending, during all which time parties might 
infringe as they pleased; for the patentee could not obtain an 
injunction until he had established his right at law. 

* Thus, in Brunton's patent for anchors, -windlasses, and chain cables, the 
patent was held wholly void, because the construction of the anchors was not 
new. The Judges express their reluctance at being obliged to come to that 
conclusion. The case is reported in 4th Barn, and Aid. 541. 

t 8 Common Bench Eeports, p. 165. 



16 

I think, therefore, it sufficiently appears that, notwithstanding 
the expense incurred, there is no adequate security afforded to an 
inventor in the enjoyment of his property ; and if it were as 
difficult to obtain a copy-right for a book, and to defend it when 
obtained, as it is to obtain and defend a patent, authors would be 
as rare as inventors. 



CHAPTER III. 

DEFECTS IN THE PATENT LAWS. 

Some of the defects in the law we have noticed already, viz., 
the expense and delay, the want of facilities for searching for 
previous inventions, and the want of security to the patentee. I 
shall now advert to some others. 

Sec. 1 . — Frauds arising from- caveats, and the delay in enrolling 
specifications. 

The present law is neither clear nor certain as to the criteria 
by which the priority of invention is ascertained. The right of a 
patentee dates from the sealing of his patent, and it may be so 
contrived that the person who is not the first inventor, may have 
his patent sealed first. This is accomplished by a system which has 
led to many abuses and frauds, that of caveats, and thte delay 
allowed in enrolling specifications. Any person may, at the cost 
of £i Is., enter a caveat against the granting of letters patent 
for any particular invention, or in any trade or manufacture. 
For instance^ a caveat may be entered for improvements in the 
steam engine, or improvements in cotton-spinning, candle-making, 
or such like. The effect of this caveat is, that the person enter- 
ing it gets notice of every application for a patent which has 
reference to the subject for which the caveat is entered, and has 
an opportunity of opposing the application. If he enters opposi- 
tion, the Attorney-general appoints a day to hear the parties. On 
that day they are heard separately and apart, each stating his own 
invention in order that the Attorney-general may decide whether 
any similarity exists between them. If he considers them alike, 
the patent will be refused until the parties have entered into some 
amicable arrangement. The effect is that the person who entered 
the caveat, from seeing the title of the patent applied for, endea- 
vours to guess at what the invention is, and if he succeeds in 
doing so, or persuades the Attorney -general that the inventions 
are similar, it may result in his either becoming a joint proprietor 
of the patent, or receiving a large sum of money to get rid of his 
claim ; and the witnesses examined before the committee of 1829 
state, that caveats are entered, stating the invention in very gene- 
ral terms, with the sole object of enabling the parties who have 



n 

entered them, to oppose persons applying for patents, and thus to 
extort money. Again, it works in this way ; a person applying 
for a patent, is not bound in the first instance to specify, that is, to 
give any details of his invention ; he may obtain a period of six 
months to specify, by applying for a patent for the United King- 
dom,* and he obtains a patent without having really made any in- 
vention, but trusting that he may find out something before the six 
months have elapsed. The following advice is given in the pub- 
lication of Messrs. Newton and Son, already adverted to : — " The 
most politic course for an inventor to pursue, in the event of his 
having some supposed improvements, which he may ultimately 
wish to protect by patent in the United Kingdom, but of the suc- 
cess of which he is not perfectly certain, is to enter a caveat, and 
take the preliminary steps to secure a patent for England by 
making the application in the regular manner, as if it were his 
intention to obtain the patent in due course." Now, the practical 
effect of permitting this course is as follows. A person makes an 
important invention, say in the machinery for spinning cotton, and 
has his invention perfected, ready for use, and desires to take out a 
patent. He goes to the patent office, and finds that there have 
been five or six patents recently granted for improvements in the 
same machinery, the specifications of which have not yet been 
enrolled, and for anything he knows they may be identical with 
his own. If he now applies for a patent and enrolls his specifica- 
tion forthwith, as he is prepared to do, it is obvious that his patent 
may be avoided ; for any prior patentee may see and examine his 
specification, and take hints from it, and embody it substantially 
in his own specification, which is yet to be enrolled, and upon the 
enrolment of that within the time limited, he, though a pirate, and 
not an inventor, gains priority over the real inventor, because the 
patent was first sealed. Caveats are entered and patents applied 
for on this speculation, by persons also who have no claim M'hat- 
ever to be considered inventors ; especially in trades where im- 
provements are continually taking place.f Thus, a man sees a de- 
sideratum^ an object which if accomplished would be of great va- 
lue, but has not the ingenuity to devise the means, or has only 
some very obscure notion of a mode in which perhaps it might be 
done. He applies for a patent for an improvement in this respect; 

* " The reason for allowing a longer time for specifying, when the party 
intends to apply for Scotch and Irish patents, is, that these patents require 
a much longer time for their preparation than English patents ; and if the 
English patent were to be enrolled before the sealing of the Scotch and Irish 
patents, these patents would be void, on the ground of the invention not 
being new, a knowledge of the invention having been previously given to 
the public by the enrolment of the specification." — Hindmarch on Patents. 

f These evils are to some extent remedied by an order issued by the English 
Attorney- General, and which came into operation on the 15th January, re- 
quiring an outline of the invention to be deposited ; but this cannot entirely 
do away with the evils, which seem to be inherent in the present system of 
granting patents. 

B 



18 

and, if unopposed, obtains it without difficulty. Afterwards, when 
other minds really supply the want, and devise the means of prac- 
tically working it, he steps in, and reaps the fruit of their inge- 
nuity.* 

Sec. 2. — Strictness required in Specifications. 

The rule which now prevails, that if a party claims anything in his 
specification which is not his invention, the patent is vitiated, works 
injustice. The patent should be permitted to stand good for the 
part really new, if the whole was bona fide an invention.! It 
is also a defect in the present law, that if you make an improvement 
in your patented invention, you must go through the expense of 
obtaining a new patent in order to have the benefit of that improve- 
ment. 

Sec. 3. — Tribunals and Modes of Procedure for trying Patent 
Questions. 

With respect to the modes of procedure for trying patent cases, 
and the tribunals before which they are tried, it must be admitted 
that they are open to great objection, and much fault is found with 
them, and justly. On the other hand, the creation of special 
tribunals is felt to be dangerous, and, save so far as the experience 
of other nations as to their working may serve as a guide, experi- 
mental. I sliall notice what I conceive to be the most marked and 
glaring defects in the present system. And first, I think I am 
justified in saying that the selection of the Attorney or Solicitor 
General, as a judge in patent cases, is one of the very worst that 
could be conceived. In the unopposed cases, as has been already 
stated, no inquiry is made into the novelty of the invention or 
otherwise ; it passes as a matter of course. In opposed cases, the 
inquiry is by no means a satisfactory one. One of the witnesses 
examined before the committee of 1829 (Mr. Few) says, "The 
practice before the Attorney General is little better than a farce at 
present." Mr. Farey says : — " Upon any person proving to the 
Attorney General that an invention had been publicly practised 
before, he would refuse the patent ; but opposition is of no effect 
unless it be a notoriously old invention." Since that time, more 
strictness has been introduced, and the practice before the Attorney- 
General has been much improved by recent regulations ; but still 
it is a very defective tribunal. Mr. Webster, in his evidence before 

* *• Persons have frequently been known to obtain patents containing 
titles couched in the most general and indefinite terms, for the purpose of 
afterwards including any novelty of which they may obtain a knowledge 
during the time allowed for the enrolment, and which would be covered by 
the title." — Hindmarch on Patents. 

f ''More patents have been lost by the insufficiency of the specification 
than any other cause." — Hindmarch on Patents. 



19 

the Committee of 1849, says that it is a bad tribunal, and great 
delays and postponements take place. It is evident that such 
delays must take place when we consider for a moment the occu- 
pations which press upon an English Attorney-general. — Profes- 
sional, public, and parliamentary business, all to be discharged, 
render it perfectly impossible that the Attorney-general could 
satisfactorily hear and adjudicate upon the patent cases; and, as 
we can reckon on a considerable increase in the number of patents 
applied for, when the cost of obtaining them is reduced, it would 
then become an impossibility for the Attorney-general to dispose 
of the cases ; they would be enough to occupy the whole time and 
undivided attention of one person at least. Another circum- 
stance which renders it impossible that the Attorney-general can 
decide them satisfactorily is this, that if he refuses the application, 
there is no appeal from his decision; besides, a considerable amount 
of scientific knowledge must be possessed in order to judge rightly ; 
and this, one Attorney-general may have, and his successor may 
have none. We may, therefore, I think, conclude, that it will be 
entirely impossible to effect any adequate reform in the patent laws, 
without abolishing this function of the Attorney and Solicitor- 
general, and substituting something in its stead ; inasmuch as it 
would be impossible for them to discharge the duty when the num- 
ber of applications is considerably increased. 

Sec. 4. — Want of a simple Mode of repealing a Patent. 

The next defect I would advert to is this, that there is no adequate 
machinery for repealing or cancelling a patent which has been 
improvidently issued, or fraudulently obtained. The mode of 
procedure is, by what is called a " Scire Facias." This is a very 
difficult, complicated, and expensive proceeding ; it must be taken 
in the name of the Queen, the pleadings in it are very voluminous, 
and it is consequently a proceeding not very commonly resorted to. 
The party bringing the action must give security in £1000 for 
costs.* 

Section 5. — Law as to infringement of Patents. 
The law as to what amounts to an infringement of a patent is 
clear enough. No mere colourable variation from the process of 
the patentee, or adoption of mechanical equivalents, will prevent 
the act of the party from amounting to an infringement, f A 
patentee whose right is infringed must bring an action at law, 

* The power to determine a patent is also vested in the Queen and Privy 
Council, on the ground that it was improvidently issued, or was fraudulently 
obtained ; but there is no modern instance of a proceeding of this kind. 

t Per Tindal, C. J. Walton v. Potter (1 Webst. Pat. Cases, 586) : " When 
a person has obtained a patent for a new invention, or a discovery he has 
made by his own ingenuity, it is not in the power of any other person, sim- 
ply by varymg m form or in immaterial circumstances the nature or subject 

B 2 



20 

called an action on the case for the infringement of the patent — 
for he will not obtain an injunction without getting a verdict at 
law. A person would suppose that the only questions to be tried 
in such a case would be, the fact of infringement, and the measure 
of damages ; but, as we have already seen, that is not so, and the 
infringer brings all the ingenuity which he can command into 
play to defeat the patentee. He may, as we have seen, plead not 
guilty, that is, that he did not infringe — and plead the inva- 
lidity of the patent. Thus ditficult questions are raised, and left 
for the decision of the court and jury ; and the consequence is, 
that this action is no longer a proceeding to recover damages 
for the infringement of an admitted right, but an indirect 
mode of determining whether any such right exists ; and the 
damages given are only nominal. Now it is a very expensive 
thing to have all those various matters spread out upon the 
record, as they must be, and it is a very expensive and un- 
certain matter to have tliem decided upon by a jury, who in 
many cases do not understand the scientific question they are 
to decide upon. The consequence of this is, that each party, cal- 
culating that the jury will decide in a great measure by the pre- 
ponderance of scientific evidence on the one side or the other, 
vies with his adversary in the number of the witnesses to depose 
according to their skill to the various scientific matters at issue, 
and such a course entails enormous expense; besides, the ordinary 
class of jurymen can scarcely be expected to arrive at the true 
view of a case which must be collected from models, from draw- 
ings, from the parol explanations of witnesses and the addresses 
of counsel. When we consider all these things we cannot wonder 
at the complaints made of the expense and hazard of trying patent 
rights. 



CHAPTER IV. 
CHANGES SUGGESTED IN THE PATENT LAWS. 

In the last place, it remains that I should consider what are the 
changes in the law best calculated to remove these admitted evils, 
and to secure effectually the right of property in inventions. 

I shall at once state the changes in the law, which after a 
careful consideration of what has been suggested upon the sub- 
ject, appear to me the most desirable ; and I shall then give my 
reasons in detail for advocating each change. I may observe, 
that in recommending these reforms I have been in no degree 



matter of that discovery, to obtain either a patent for it himself, or to use it 
without the leave of the patentee." 

Per Alderson, B. in Morgan v. Seavrard (1 Webst. 171): "The ques- 
tion should he whether the defendant's machme was only colourably differ- 
ent, that is, whether it differed merely in the substitution of mechanical 
equivalents for the contrivances which are resorted to by the patentee." 



21 

influenced by any considerations as to the probability of their 
adoption. It would be easy to suggest others ^Yhich would 
conflict less with existing interests or existing abuses, and which 
w^ould, as a temporary measure, satisfy the demands of those 
who call for improvement. My aim has been to suggest a code of 
laws, sound in their principle and adapted to the growing wants 
of the country. 



SUGGESTIONS. 



1. That one patent office should be established for the United 
Kingdom, and that all patents granted should be granted for the 
United Kingdom. 

It seems to me both useless and inconvenient, that there should 
be separate machinery for the granting of patents in London, 
Dublin, and Edinburgh ; its present effect is to increase the cost 
and delay without conferring any advantage ; and it also increases 
the facilities for committing frauds, which exist under the present 
system of patent laws, some of which have been detailed. If the 
present reference to the Attorney and Solicitor-general be abol- 
ished, and a Commissioner of patents appointed, as I suggest, it 
would be obviously absurd to have three patent offices in the 
United Kingdom ; it would greatly increase expense, and tend to 
prevent uniformity of decision, by the establishment of three tri- 
bunals instead of one. As far as Irish inventors are concerned, I 
do not think they would have any just ground of complaint, at 
being under the necessity of getting their patents from the Patent 
Office in London. They are now in fact obliged to do so ; for I 
believe there is no instance of any patent being taken out in 
Ireland only ; and of the number of patents enrolled in Ireland, a 
very small proportion indeed are taken out by Irishmen. Of sixty 
patents enrolled in Ireland during the last year, only three were 
obtained by persons resident in Ireland, and I find the proportion 
in other years is not greater. I think, therefore, that all persons 
must concur in the propriety of establishing one Patent Office for 
the United Kingdom. 



o 



2. That the Patent Office should be presided over by a Com- 
missioner of Patents to be appointed by the Crown, — that he 
should be a person of scientific knowledge — that he should not 
engage in any other occupation — that the salary should be such 
as to secure the services of a competent person ; and that exami- 
ners and clerks should be appointed under him, their number to 
depend on the amount of business to be transacted. 

With respect to the appointment of a Commissioner of Patents, 
I think it is plain that the Attorney and Solicitor-general cannot 



22 

any longer Lave the jurisdiction of adjudicating upon patents 
entrusted to thera, consistently with the ensuring to the public 
despatch, and at the same time care, in the issuing of patents. It 
is clear, then, that some officer must be appointed for that purpose. 
If the plan proposed by the Society of Arts were adopted, namely, 
that a patent should consist in a mere registration, without any 
inquiry into the propriety of its grant, and treating it as a mere 
record of claim, then any ordinary clerk could discharge the duties 
of the office; but I am persuaded that it is unjust towards inventors 
and injurious to the public, that a grant of a monopoly should take 
place without any inquiry into the merits of the application. It 
would be an illusory proceeding, as it is now in very many cases, 
where a man pays for a grant of a patent for an old invention, 
from which grant, being nugatory, he can derive no benefit, and 
which only entails useless litigation on the community ; and if 
a facility of obtaining supposed privileges at a cheap rate, were 
given without any inquiry, I cannot but think that the conse- 
quences would be injurious to inventors and the public. The 
experience of the United States of America shows that the estab- 
lishment of such a tribunal works well. The qualifications of 
such a Commissioner manifestly should be of a high order. 



3. That any person claiming to be an inventor, and desiring a 
patent, should send in a petition to the Commissioner in the follow- 
ing form : — 

To the Commissioner of Patents, 

The petition of of 

Sheweth, That he has invented a new and improved mode of 
[title of the intentioii^ which he believes has not been before 
known or publicly used ; he therefore prays that a patent may be 
granted to him therefor. 

That this petition be accompanied with a specification, drawings, 
and, where practicable, a model or specimen, and a declaration by 
the petitioner, to be made before any justice of the peace, that he 
believes he is the first inventor. 

The specification to be in the following form : — 

I, A. B., having petitioned for a patent for do 

hereby declare that the following is a true, full, and exact descrip- 
tion thereof. [ Then describe the invention.'] 

This is the mode of application used in the United States of 
America. The furnishing of a model and specimen is also required 
in America ; and I have been told by those who have seen it, that 
the patent office there, with its museum attached, is an institution 
which would reflect credit on any country.* 

* The Commissioner of Patents for the United States in his Keport for 
1849, says — "The superiority of our system consists also in the rejection of 



23 

4. That a sum of £10 should be lodged in the Patent Office with 
the petition, as the fee payable on the grant of a patent. 

The sum required in America is £6 15s. from a citizen of 
the United States ; £112 10s. from a subject of Great Britain ; 
£67 10s. from any other foreigner. These distinctions are im- 
politic as well as unjust, and will no doubt soon be abolished.* 
The fee I have suggested, £10, will no doubt appear to many per- 
sons too low, but I think that on principle the fee required should 
not be more than will be sufficient to pay the expenses of the 
office, of printing the specifications, and preparing a proper cata- 
logue of inventions; any surplus that may remain after these 
expenses should be applied to the encouragement of inventors. 
The argument used against cheap patents is, that if they were too 
cheap, every trifle would be patented, and you could not, to use 
the words of one of the witnesses, bend a bar of iron without the 
risk of an action. Now it must be admitted that to require the 
payment of £300 before a patent is granted is a very clumsy 
mode of testing the merits of an invention ; though it does test 
the means of the applicant. It is entirely unsatisfactory as a test, 
and is just as likely to prevent the communication of important 
inventions as of trifling ones, if the inventor be poor ; while if he be 
rich, the payment will not prevent the patent from being sought 
for, though the invention be worthless, if the inventor be ignorant 
or vain. With respect to the evils to be apprehended from cheap 
patents, I believe that if due inquiry were made into the novelty 
of the invention, no suqj^ evil consequences would ensue. If the 
invention prove worthless, then no one is injured by being debar- 
red from its exercise ; if it is new and useful, the inventor is en- 
titled to be rewarded for his ingenuity : and the multiplication of 
patents would introduce more generally the system of giving 
licences to use them at a moderate rate. 



intricate legal forms, so that any inventor of ordinary capacity may make out 
and pass through the office his own papers, without the intervention of attorney 
or agent ; also in the requirement of models and their free examination — in 
the information and advice verbally and by circulars gratuitously given — 
access to the office library — and in the practice of examining into the novelty 
and value of devices and discoveries for which patents are asked. Not a week 
elapses Avithout ingenious men being prevented from spending their money 
on patents by what they see and learn here. Every applicant in person is 
advised to look through the models, examine the specifications, and the 
published reports of the office before making application ; it is, perhaps, 
superfluous to add that many who follow the advice see they are anticipated, 
and make no application at all.' Surprised to find themselves on beaten 
tracks, instead of ranging, as they supposed, through untrodden fields, they 
have their attention turned to more promising directions, and a future waste 
of time and means prevented." 

* The Commissioner in his report for 1848, observes, — "Even if it were 
just to make a discrimination in favour of American citizens with regard to 
fees for patents, I am of opinion that the policy is injurious to the interests 
of the country, and therefore not expedient." 



24 

5. That it should be the duty of the Commissioner to cause each 
application to be entered in a book according to its priority, and 
that he should examine and decide upon every application in the 
order of its priority, without prejudice to his considering at the 
same time similar imventions for which applications were pending. 

This regulation is necessary in order to secure his rights to each 
inventor according to the priority of his invention, and is analogous 
to the priority given to deeds according to the date of their regis- 
tration. 



6. That the Commissioner should inquire into the novelty of the 
invention, and see that the drawings and specifications are clear 
and intelligible ; but he is not to entertain any question as to the 
utility or importance of the invention, or to have any discretion 
as to granting the patent if these two requisites exist, novelty and 
a full description. 

I think it would be dangerous to give the Commissioner any 
discretion in respect to the utility of the invention — novelty is a 
question of fact, utility is a speculative question which could not 
be satisfactorily decided upon, and which time only could test — and 
it is better that many patents for useless things should be taken out, 
than that one useful invention should be excluded from the privilege. 



7. If the Commissioner is satisfied that«,the invention is novel, 
and that a full description of it is given, he is to grant a patent 
which is to be in force from the date of the presenting the petition, 
and which may be in the following form : — 

BY THE COMMISSIONER OF PATENTS. 

Whereas, A.B. did on the day of present a petition to 
me, praying that a patent should be granted to him for [title of 
invention'] and same was accompanied by a specification and mo- 
del marked and numbered ( ). 

Now, I do hereby by virtue of the authority vested in me 
grant unto the said A.B. the exclusive right to use, &c. to hold 
to him, his executors, administrators and assigns, for fifteen 
years from the said day of 

The form of patent here given is short and simple, and an 
improvement on the prolix form now in use, which may be seen 
in Hindmarch on Patents. 



8. If the Commissioner comes to the conclusion that the inven- 
tion is not novel, he is to communicate that to the petitioner, and 
if the petitioner acquiesces in the decision, to return him one-half 
the fee, £6. The petitioner shall in all cases have a right of 



25 

appeal from the decision of the Commissioner to the Judicial Com- 
mittee of the Privy Council. 

I think the right of appeal from the decision of the Commis- 
sioner is essential to the success of the system ; and as the Privy 
Council now exercise the important jurisdiction of extending the 
time for patents, I have suggested it as the appellate tribunal. 



9. If the Commissioner decides that the drawing, specification, 
or models are defective, he is to give notice thereof to the peti- 
tioner, and permit him to withdraw them for the purpose of recti- 
fying the defect if he wishes ; and when the defect is removed, they 
may again be sent in, on payment of £5 ; but the application is, for 
the purposes of priority, to be considered as a new one. 

This is suggested in order to induce inventors to present their 
inventions in a complete form, and capable of immediate prac- 
tical application. This seems to be a proper place for explaining 
why I have suggested no provision for allowing any time to specify 
after the grant of the patent. The frauds which 1 have shewn 
that system gives rise to, and the dangers to which it exposes 
honest inventors, furnish, I think, a sufficient reason for giving no 
such latitude. It is admitted on all hands that in order to guard 
against fraud, in every case a substantial description of the inven- 
tion should be given ; if this be so, and if the invention is complete, 
there can be no objection to giving a complete specification in the 
first instance, and the withholding it is both useless and dangerous ; 
but if a man has only an idea of an invention, if he has not re- 
duced it into form and shape, but thinks he will be able hereafter 
to do so, I think he is not as yet entitled to be called an inventor, 
and should not receive a patent. The efi'ectof the present system 
is, that persons rush in with designs crude and half-formed, and 
which often turn out abortive, because they know that any other 
person may do the same, and they fear they may be anticipated; 
but if it be promulgated that no patent will be granted unless the 
invention is a in complete state, then this race would not take place, 
every man would wait till he had matured his plans, and all would 
be placed on an equality. I by no means say that an inventor is 
not to get a patent unless his invention is brought to perfection, 
only that it should be available, and be presented in a defined and 
clear form ; and if it does not fulfil the requisite of being practi- 
cally available this should be one of the grounds for cancelling it. 
Whenever the patentee improves his invention he should be 
allowed to register his improvement, pursuing the same course as 
when he obtained his patent. Much has been urged as to the 
necessity of giving protection to an inventor while he is making 
experiments for the purpose of testing and perfecting his invention, 
and the dangers arising from the disclosure of designs by work- 
men and servants, have been used as arguments in support of 



26 

allowing time to specify, and protecting in the mean time. The 
reason, however, that an inventor is now exposed to so much 
danger from these causes is, that patents can be obtained on im- 
perfect descriptions, and therefore any person getting a hint of the 
plans of the inventor may now anticipate him in obtaining a patent. 
This, however, would be impossible under the system which I 
suggest, as the man who originated and was completing his inven- 
tion, would in all probability bring it to perfection much sooner than 
a person who got a casual hint of the design. The breaches of 
confidence complained of are matters which legislation cannot 
reach or prevent. 



1 0. As soon as the patent is granted, notice shall be given by 
advertisement that it has been granted ; the specification and 
drawing shall be printed, as parliamentary papers now are, and 
sold at a moderate rate, and the models shall be open to inspection 
in the museum attached to the office. 



11. For the period of three months from the grant of the 
patent, any person may apply to the Commissioner of Patents for 
a summons, calling on the patentee to shew cause why the patent 
should not be repealed for any want of novelty, or for any defect 
or incompleteness in the specification, fraud or misrepresentation, 
prior use, &c. and he shall obtain such summons on lodging the 
sum of £10 to meet the expenses of such summons ; and the pro- 
ceeding by Scire Facias shall be abolished. 



1 2. The Commissioner shall appoint a time to hear such sum- 
mons, and shall have power to refuse or grant the application, or 
direct the specification to be amended, and shall have power to 
order either party to pay the costs. This decision to be subject 
to appeal as before. 



13. If any such application be made after the period of three 
months, it shall be only granted on lodgment of £50. 

The last four regulations are, I conceive, advisable, in order 
that if the patent has been unduly obtained, it may as soon as possible 
be cancelled ; and an easy mode of obtaining the cancellation is 
given in lieu of the expensive proceeding by Scire Facias. 



14. That in any proceeding in courts of law or equity by 
the patentee, the patent shall be conclusive evidence that the in- 
vention is a novel one, and that the patent was duly obtained, and 
that the only question to be tried in an action for infringement, 
shall be the fact of the infringement, and the amount of damages; but 
that any party who is sued for such infringement, or against whom 



27 

an injunction is sought, shall have the power of staying the pro- 
ceedings until the result of an application to cancel the patent 
shall be known. 

I think that the patentee is entitled to this privilege, in 
consequence of the examination which has been made into his ap- 
plication, and the public cannot complain of it, as they have a 
cheap and easy mode of cancelling the patent, if they are entitled 
to that relief. This would restore the action for an infringement 
to its proper use and functions ; and it is only an application of the 
ordinary principle of law, which is adopted in all other cases, 
that " possession is sufficient against a wrong-doer," — here a party is 
in possession of a grant from the Crown of the exclusive use of a 
certain invention, it should be presumed that the grant is rightful, 
unless it be directly impeached ; and it ought not to be incidentally 
called into question, no more than the title to land, or to a chattel 
could, if any action were brought for a trespass or injury to it by 
the person in possession. 



15. That it shall be lawful for a patentee to sue in the County 
Courts in England or Civil Bill Courts in Ireland, if he seeks only 
the amount of damages to which their jurisdiction respectively 
extend. 

Unless the suggestion No. 1 4 be adopted, it would be absurd to 
give any jurisdiction to the inferior courts, or send to them ques- 
tions to be tried involving scientific matters. The Civil Bill Courts 
here would be entirely unsuited for trying any question except 
that of damages, and there is no provision in those courts for the 
payment of the expenses of witnesses, who should be called, if it 
were open to the defendant to q^uestion the validity of the patent. 



16. That no error in a specification shall be deemed to vitiate 
it, unless it be fraudulent and calculated to mislead. 

This seems only just, and the determination of it may be fairly 
left to the Commissioner, with the same right of appeal as in 
other cases. 



1 7. That the patent should be granted for 1 5 years. That the sums 
to be charged for a patent should be paid as follows : — £10 on the 
application, £ 10 beft re the end of three years, £20 before the end 
of seven years, and £30 before the end of twelve years from the 
commencement of the patent ; that upon the non-payment of any 
of these sums the patent should be at an end ; that at the expira- 
tion of the 15 years an application for an extension may be made 
to the Commissioner, who is to be guided by the same principles 
as the Privy Council now act upon, and to give an extension for 



28 

such further term not exceeding five years as he shall think fit, 
the charge to be fixed by him, but not to exceed £50, with an 
appeal to the Privy Council. 

This involves the principle of periodical payments, which is 
most valuable as testing the utility of inventions and extinguish- 
ing dormant and unused patents. The periods and sums are of 
course open to much consideration; I have suggested what I 
think the reasonable amounts, but any change in the details will 
not aifect the principle of payment, which will I think be found 
to be an improvement on the American system.* 



18. That the funds of the Patent Office should be applied in the 
first instance towards printing and publishing the specifications, 
and preparing an analytical index of existing specifications under 
proper heads, with indexes for reference. 

Unless the specifications be thus published and made accessible to 
the public, it will be impossible for inventors to ascertain the no- 
velty of their inventions, or for the Commissioner to decide upon 
them. The want of such an index is loudly complained of. 



19. That all patents now in force should within one year be 
brought in and registered in the Patent office, for which a fee of £6 
should be charged ; and in the event of any patent not being regis- 
tered within that time, it should be deemed void. 

This is necessary in order to bring all the patents into the new 
office, and put an end to the useless ones which the proprietors 
will not think worth registering. 

* As I have frequently referred to the law of the United States as to 
to patents, it is right to mention that I am indebted for the information res- 
pecting its working, to the annual report presented by the Commissioner of 
Patents to Congress and printed. These reports are prepared with great 
care and ability, and the facts therein stated convey a very favorable idea of 
the working of the system. 

It appears that during the four years, 1841-2-3-4, the number of ap- 
plications for patents in the United States was 3,472, and the number of 
patents issued was 2,073. In the next four years ending 1848, the number 
of applications was 5,667, and the number of patents issued was 2,362. In 
consequence of the staflP being too small, arrears of applications had accumu- 
lated in 1848 ; but all are now cleared off, and at the time of making the last 
report in 1849, only nine applications were undisposed of. Thus it appears 
that more than half of the applications for patents are refused on the 
ground of want of novelty. An appeal is given from the decision of the 
Commissioner to the Chief Justice of Columbia, but very few appeals occur, 
and the fact that such a number of applications are refused, and the refusal 
acquiesced in, speaks strongly in favour of the system, and demonstrates the 
value and necessity of the previous inquiry. 



29 

20. That the funds of the Patent Office, after paying office 
expenses and printing, should he applied towards the promotion of 
arts and manufactures by offiiring prizes or otherwise. 

The money levied from inventors should be applied to no other 
purpose except the promotion of inventions. 



21. That Patents should be considered as personal property, and 
have its incidents, and should be capable of being legally assigned, 
either absolutely or for any time or place agreed upon. 

This is necessary in order to put an end to many questions which 
now arise as to the property in Patents, and as to the number of 
persons who may take an interest in them. 



Such is an outline of the reforms, which, after the best con- 
sideration I can give the subject, I venture to suggest. I have 
of course given but an outline, for to enter into minute details 
would be needless, and would make this paper exceed due limits. 
The distinguishing features, however, are : — 

The reduction of the cost to a sum sufficient to defray the ex- 
penses of the office, with a mode of payment calculated to test the 
utility and success of the inventions. 

A previous inquiry into the novelty of each invention before it 
is patented. 

AffiDrding to the public a cheap and expeditious mode of cancel- 
ling improper patents. 

AffiDrding to the patentee security in the enjoyment of his patent, 
by making it conclusive of his right, except before the tribunal 
which has power to grant and cancel it. 

I may, in conclusion, observe that the British empire has 
hitherto taken the lead in the introduction of new and improved 
modes of manufacturing articles of general consumption, and to that 
circumstance much of our commercial prosperity may be attri- 
buted. That so many inventions should have taken place, and 
that such progress in the useful arts should have been made, not- 
withstanding the difficulties and obstacles placed in the way of 
inventors "by our law, speaks highly for the skill and genius of 
our people. If, however, we are to preserve that preeminence, it 
is evident that these obstacles must be removed, and genius at home 
must be placed under circumstances as favorable as it is in other 
countries. The restrictions which now clog.and fetter it, and which 
had their origin in feudal times, and are based on principles no 
longer applicable to the state of society in which we live, must be 
abolished, and a better system must be adopted. This reform I am 
persuaded ought to be a thorough one ; we ought not to retain 



31 

parts of the old system and engraft the new upon it, but at once 
establish a code of laws upon this subject which will not require 
continual alteration and modification, but will be once for all 
made as complete as wisdom and experience can devise. 

I am, gentlemen, 

Your obedient servant, 

JAMES A. LAWSON. 



To the Council of the Society for Promoting 
Scientific Inquiries into Social Questions. 



LIBRARY OF CONGRESS 



019 974 949 3 



LIBRARY OF CONGRESS 



019 974 949 3 



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